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					                                                                 United States Department of State

                                                                 Bureau of Oceans and International
                                                                 Environmental and Scientific Affairs

                                                                           Washington, D.C. 20520

29 September 2006

Dr. Ahmed Djouglaf
Executive Secretary
Convention on Biological Diversity
World Trade Centre
393 Saint-Jacques Street, Suite 300
Montréal, Québec, Canada H2Y 1N9

RE: Response to Notification 2006-032 – Decision VIII/29: Liability and Redress (Article 14,
paragraph 2) - Examples of national/domestic legislation and case-studies

Dear Dr. Djoghlaf:

The United States thanks the Convention on Biological Diversity (CBD) for its inquiry to the
Asia Pacific Economic Cooperation requesting “technical information relating to damage to
biological diversity and approaches to valuation and restoration of damage to biological
diversity.” The United States recognizes that addressing threats to biological diversity is and
should be a priority for all countries, including APEC economies. Indeed, the United States is
active in many fora that deal with the issues of biodiversity and resource conservation.

Any discussion of damage to biological diversity and approaches to valuation and restoration of
damage to biological diversity requires clearly defined and agreed upon terms. Biological
diversity is defined broadly in the CBD as the variability among living organisms from all
sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological
complexes of which they are part; this includes diversity within species, between species and of
ecosystems. In addition, this discussion involves the use of legal terms, including damage, harm
and liability. Definitions for these terms must be identified and agreed upon.

The United States feels strongly that any discussion of damage to biological diversity must be
based on a clear understanding of the definition of damage. Damage to biological diversity is
not merely a change in biological diversity. It must include at least the elements that the change
affects variability and that the change is negative. Further, there should also be a damage
threshold and Parties should only address impacts on the conservation and sustainable use of
biological diversity that rise above a de minimis level of significance, at least those that are
“significant” or “substantial.”

Another issue for consideration is whether damage to biological diversity under the CBD is
understood in terms of transboundary harm or harm occurring within Parties, not necessarily

transboundary in nature. U.S. domestic laws providing redress for harm from biodiversity focus
on harm occurring within our jurisdiction and do not typically contain a transboundary element.

U.S. regime for natural resource damage

Although the United States does not have domestic legislation specifically on damage to
biological diversity, there is a regime established for determining compensation for certain forms
of natural resource damage. Two key U.S. statutes are the Comprehensive, Environmental
Responsibility, Compensation and Liability Act (CERCLA), 42 U.S.C.A. §§ 9601- 9675, and the
Oil Pollution Act (OPA) 33 U.S.C.A. §§ 2701-2761. 1 CERCLA covers damage from hazardous
substances and the Oil Pollution Act covers damage caused by oil spills.

●       Under both regimes, “natural resources” includes land, fish, wildlife, biota, air, water,
        ground water, drinking water supplies and other such resources. 42 U.S.C.A. § 9601(16);
        33 U.S.C.A. § 2701 (20)

●       Natural resources damages can be sought by “trustees,” those federal and state
        governments and Indian tribes appointed to protect, manage and restore natural resources.
        43 C.F.R. 11.14 (rr); 15 C.F.R. 990.30

●       Under CERCLA injury is defined inter alia as a “measurable adverse change, either long-
        or short-term, in the chemical or physical quality or the viability of a natural resource. . .”
        43 C.F.R. 11.14(v). Under OPA regulations, it is “an observable or measurable adverse
        change in a natural resource or impairment of a natural resource service. . . “15 C.F.R.

●       As explained below, damage is determined as deviation from a baseline. Under both
        regimes, “baseline” means the condition or conditions that would have existed at the
        assessment area had the incident under investigation not occurred. OPA regulations
        further specify that baseline data may be estimated using historical data, reference data,
        control data or data on incremental changes, alone or in combination, as appropriate. 11
        C.F.R. 11.14(e); 15 C.F.R. 990.30

●       The process of assessing harm to natural resources is complex.

●       Under the current CERCLA rule, many natural resource damage assessments for
        hazardous substances occur in three stages: 1) injury determination; 2) Injury
        quantification and 3) damage determination. 43 C.F.R. 11.61

            The steps in injury determination include: defining the injury, determining the
             exposure pathways connecting the cause to the injury, and testing and sampling
             methods. 43 C.F.R. 11.62-64

   See also the Park System Resources Protection Act, 16 U.S.C.A. § 19jj et. seq., which allows for recovery of
damages to park system resources in National Parks. It is therefore geographically limited, but the source of damage
is broader than CERCLA and OPA in that it is not limited to damage from hazardous substances or oil spills.

            During the quantification step, the trustee2 characterizes the injury in terms of a
             reduction in natural resource services from a baseline state, as well as the amount of
             time needed to return to baseline state. In determining the physical, chemical and
             biological baseline conditions, the authorized official should consider, inter alia,
             conditions that would have been expected at the assessment area had the discharge
             not occurred, taking into account both natural processes and those that result of
             human activities.     43 C.F.R. 11.72

            Damages are determined first through primary restoration: the cost of restoration or
             replacement of the damaged resource. There is also the possibility of compensatory
             restoration: the value of the lost services of the resource during the time period from
             the injury until baseline conditions have been restored. The trustee can choose
             among several valuation methods for estimating compensable value, including market
             valuation, appraisal, factor income, travel cost, hedonic pricing, unit value, contingent
             valuation, or other suitable valuation methods.3 43 C.F.R. 11.80 et. seq.

●        Under the current OPA rule, natural resource damage assessments for oil spills occur in
         three stages: 1) pre-assessment; 2) restoration planning phase; and 3) restoration
         implementation phase.

            Pre-assessment is determining jurisdiction to pursue restoration of natural resources
             under OPA. 15 C.F.R. 990.40.

            During the restoration planning phase, the trustees evaluate and quantify potential
             injuries (injury assessment), and use that information to determine the need and scale
             of restoration actions (restoration selection). 15 C.F.R. 990.50. The trustees must
             consider primary restoration actions which are actions to directly restore the injured
             natural resources and services to baseline on an accelerated time frame. 15 C.F.R.
             990.53(b). The trustees must also consider compensatory restoration actions which
             are actions to compensate for interim loss of natural resources and services pending
             recovery. 15 C.F.R. 990.53(c).

            During the restoration implementation phase, the selected restoration actions are
             implemented. 15 C.F.R. 990.60.

Like the United States, many countries have legal regimes that are also capable of identifying
and addressing damage to biological diversity. The United States believes that existence of these
regimes at the national level argues against the need for the creation of an international regime to
address damage to biological diversity.

  A “trustee” may be a designated Federal agency, a designated State agency, or a designated Indian tribe. See 43
C.F.R. 11.14 (rr).
   See 43 C.F.R. 11.83 for a description of these methods. e.g. “market valuation” is a methodology used whereby
if the resource is competitively sold, the diminution of value of the injured resource or lost services may be used to
determine the compensable value of the injured resource. “Hedonic pricing” is a method used to determine the
value of resources that are not traded in the market through an analysis of commodities that are traded in market.

Damage to Biological Diversity and Agricultural Biotechnology

The United States notes that, although this request for information does not specifically refer to
genetically engineered crops, both the CBD and the CPB cite living modified organisms (LMOs)
as potential risks to biodiversity. As the world’s leading producer by acreage of biotechnology
crops, the United States has significant experience regarding these crops and their impacts on

The United States has over a decade of experience with the large-scale commercialization of
biotechnology crops. During this time, there has not been one verified instance of an adverse
effect to biodiversity caused by the cultivation of biotechnology crops. In fact, there is mounting
evidence that genetically engineered crops may benefit the environment compared with their
conventional counterparts, due to engineered traits like herbicide tolerance and insect resistance,
which generally result in higher yields and may allow the use of more environmentally sound no-
till agricultural methods. In theory, if not in practice, biotechnology crops may enhance
biological diversity by requiring less land to be pressed into agricultural service. Further, in
nearly all countries in which LMOs are used in agriculture, they are the most scientifically
scrutinized agricultural inputs ever used.

Standards of Liability

Any discussion of damage to biological diversity inevitably touches on the issue of the standard
for determining liability for such damage. Fault-based liability assigns liability to the party that
has breached a legal obligation or duty. It is the accepted standard of liability around the world
for activities that are not inherently dangerous. Strict liability is reserved for the most hazardous
activities, activities which by their nature are dangerous or ultra-hazardous.

Again, thank you for the opportunity to submit our response to Notification 2006-032 regarding
Decision VIII/29: Liability and Redress (Article 14, paragraph 2).


Christine Dawson
U.S. Focal Point for the Convention on Biological Diversity
Bureau of Oceans and International Environmental and Scientific Affairs
U.S. Department of State
2201 C Street, NW
Washington, DC 20520